When Calculating Damages, Don’t Forget Your Future
When someone suffers a personal injury, the focus is typically on the immediate damages they sustained as a result of the accident: bills for accident-related medical treatment, property damage, and lost wages.
But what if their injuries never completely heal and they are faced with ongoing expenses and other issues arising from the accident, which may impact them for the rest of their lives?
Many personal injury plaintiffs continue to need medical treatment long after their accident. Future medical treatment necessary for injuries that do not resolve may include:
- Pain management
- Mental health counseling
- Physical therapy
- Chiropractic care
A future medical damage award is based on the probability that prospective damages will result from the original injury. Physicians and other medical experts are often called on to testify regarding the necessity of future medical care and to offer an opinion about the probable cost of such treatment — evidence that should never be left for speculation.
Loss of Future Earnings and Earning Capacity
Injured plaintiffs commonly are unable to work for a few hours, days, months, or sometimes even years after a serious accident. Claims for the loss of future earnings and loss of future earning capacity are similar, but there is an important difference between the two. While a plaintiff may be awarded a specific amount for loss of future earnings when their injury forces them to change jobs or go from full-time to part-time employment for a while, damages for lost future earning capacity are awarded for loss of earning power, not simply the loss of earnings. In a loss of future earning capacity claim, the focus is on what the injured plaintiff could have earned over the course of his working life if he hadn’t been injured, not what he earned or will earn in any given year.
When making a claim for loss of earning capacity, expert testimony regarding what an injured plaintiff could have earned takes into account the plaintiff’s age, employment record, training, education, ability to work, and opportunities for advancement. When an economic expert testifies, he frequently departs from historical earning patterns, instead focusing on the changed circumstances that the injury has left the plaintiff with through no fault of his own.
Loss of Enjoyment of Life
Loss of enjoyment of life is the loss that results from physical impairments that limit the plaintiff’s future ability to share in the pleasures of life. While it is usually not too difficult to present evidence illustrating how the injury has impacted the plaintiff’s lifestyle and his capacity to engage in some of the activities he enjoyed prior to the accident, such as hiking, biking, playing with his grandchildren, or even sitting long enough to watch a baseball game or travel in a car, quantifying these losses can be another matter. Loss of enjoyment of life involves the quality of a person’s life, which is inherently speculative and cannot be measured definitively in terms of money. In Colorado, loss of enjoyment of life is a non-economic damage and awards are capped. Different caps may apply according to the circumstances, and the limitations are adjusted according to inflation.
Not Easy to Come By, but Worth the Effort
Awards of future damages are definitely not automatic. They must be carefully presented and proven with some degree of reasonable certainty, from the initial claim stage all the way through litigation, if necessary. The future of an injured person depends upon it.
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